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Wednesday, December 7, 2016

On November 14th, 2016, the Greenberg Chair in Women and the Legal Profession at the Faculty of Law, and the Centre for Health Law, Policy and Ethics, University of Ottawa, was proud to present a panel featuring a variety of perspectives on law, policy and practice of surrogacy in an international context.

The panel featured Prof. Bronwyn Parry, of the Faculty of Global Health and Social Medicine at King's College London, Pam McEachern, lawyer at Nelligan, O'Brian, Payne LLP ( family and human rights law) and Erin LePine, lawyer at Nelligan, O'Brian, Payne LLP ( family and fertility law).

Tuesday, December 6, 2016

To The Parties Affected by the Recent Wave of Hate
Crimes and Ignorance,

First,
I send you greetings from a fellow North American who shares the shock, the
pain and the hurt has resulted from the recent U.S. Election for many groups. I
also acknowledge the pain and frustration that those who have suffered at the
hands of hateful individuals who have decided to emerge from hiding and reek
terror on the good people of our cities, whether here in Ottawa or beyond our
borders.

There are some
things in life we cannot explain. At this time, it's easy to sink into the dark
recesses of fear and be prepared to expect the worst in human beings. It’s
natural to feel as though you’re now in a world where every stake that could’ve
been uprooted has been hammered in tighter while even more are driven into the
ground of your path in life. It’s easy to feel alone when it seems as though
people have turned against you, have turned their backs on basic, human decency.
You feel isolated, scared, fearful, depressed, even angry. You feel as though
your friends will call you crazy for letting these things get to you; that your
parents will say to worry about what you can change; that your significant
other will slowly begin to distance themselves from you because you’re not the
same person you were before these things happened.

But
you’re forgetting something.

You’re
not alone.

To the minorities who fear having their race be the
only judge of their character,

Your
ownership and stake in this land has not been diminished by the amount of
melanin in your skin. Your accomplishments have shaped the nation and the world
so profoundly that no one can erase you from history. Your blood, sweat and
tears have formed the foundation for laws and principles of oneness and
equality that no executive order can overturn. Your cultural uniqueness is an
asset, not a burden. You are not alone.

To the women of the country who fear being shackled by
sexism,

Your
worth can never be summed up by your measurements. Your potential doesn’t
depend on how many likes your Instagram photos get. Your power does not come
from a man’s permission to lead, but your God-given right to rule like the
queen you are. Your integrity is not for sale because you are not an object.
Your intelligence is not a question because it is often the answer. Your voice
is not nagging, it’s you saying, “I want something better.” You are not alone.

To the religious groups who fear being targeted
because of their faith,

Our
faiths may differ, but the bonds of humanity we share can never be severed by
differences in doctrines. Our practices may be different, but our shared love
for human kind is one that transcends those things that spark contentions
between us. We know what it is like to have extremists deface the principles of
our faith and mislead people about the character of our God. We know what it is
like to have people believe that a minority of ignorant, hateful individuals
who believe that perverting Holy Scripture to suit political agendas, speak for
all of us, who pretend that their actions don’t break the heart of a divine,
loving God, whatever name we choose to call Him. You are not alone.

To the members of the LGBTQ+ community who fear being
persecuted for their sexual orientation,

Who you love, how you identify, is none of our
business. How we treat you is everyone’s concern. Your lives have been open
books that some people wish were closed. They fear the confidence you have to
live as you are because they wear masks to hide who they are. Your humanity is
not determined by who you love, how you identify yourself or even how you live
your lives. You are not alone.

To the immigrant families and communities who fear
being deported,

Your
place is right here with us. Your sacrifices are so bound up in the fabric of
this country, your diverse experiences and skills so essential to the essence
of what has made this nation already great, that to tear you out of it would be
tantamount to tearing out a chunk of our soul. Your children are our children,
your families are our families, and your home is where the hearts of all
citizens of the country lie: in the soil of the land you are standing on.
You are not alone.

Anyone
who tells you to hate your brother because he prays to a different God, pray
for them because they know not what they do or what they say. Anyone who says
that being a certain skin colour makes you inferior, show them where the
Founding Fathers declared in the document that gave America its freedom that
ALL men and women are created equal. Anyone who believes that a woman is
nothing more than a rating given to her by a man-child, remind them that
royalty doesn’t need outside consultation on whether their pedigree is good
enough to sit on the throne and rule. Anyone who allows for hatred to thrive
against people who are of a different sexual orientation, who wants to treat
them as though they’re second-class citizens in a first-world country,
enlighten them to the fact that human beings deserve respect and equal treatment,
no exceptions.

Politics may
shape a country, but it is the individual citizens who choose if they will be
defined by it. And time after time, in the face of adversity, we have always
stood together, whether we be Canadians or Americans. Because we all know as I
do that our people who are hurting right now, who need our support and our
protection, are not alone. There will always be others who share your views,
individuals who support your dreams and your visions, communities of all
faiths, races, and orientations who want to see your hopes bear fruit.

YOU. ARE. NEVER.
ALONE.

And when
individuals challenge you, if they want to stand in your way, if they dare you
to make them move out of your way on the road to progress, your response…

Tuesday, October 25, 2016

The Greenberg Chair in Women and the Legal Profession was thrilled to host Dr. Carys Craig on Wednesday, Sept. 21st, 2016. She delivered a talk entitled "A Feminist Copyright Agenda:
Open Access, Attribution & the Academy". You can find the transcript of this thought provoking talk here and the podcast here.

The 2016 Indigenous Bar
Association Conference entitled “Redefining Relationships: With or Without You”
was hosted in Musqueam Territory. There was a record-breaking student count at
this year’s conference, which created a particular energy in the air - one that
was forward-thinking and hopeful.

In our corner of the legal
profession, women seem to outnumber the men and being surrounded by so many
successful and inspiring Indigenous women was a rare and special experience.
Looking around the conference, you could see distinguished and influential
Indigenous lawyers and advocates. A deep respect for the work that has been
done, and continues to be done by these individuals emerges as you navigate the
conference and catch glimpses of their laughs and conversations.

The conference was filled with
speakers that inspired and motivated like Senator Murray Sinclair, Jeffrey
Hewitt, Dr. Val Napoleon, Dr. Tracy Lindberg, Tanya Kappo, and Jean
Teillet. All speakers spoke so
eloquently - from their hearts - encouraging us all to remain critical and
compassionate.

A common message of many of the
speakers was to remember to love your communities more than you love yourself;
a humble and powerful request of us. These tugs of responsibility and
obligations, depending on your discipline, are overwhelming in isolation. Our
ability to gather together and talk about culture, histories and current issues
affecting our communities revealed the passion and pain of legal pursuits.

Val Napoleon, an absolute idol,
was awarded the Annual IBA award this year at the gala. Val Napoleon was
honoured by traditional Musqueam dancers and drummers; the ceremony was the
most moving and beautiful honouring I have seen in a long time. I have a deep
respect for this phenomenal leader and woman. A sense of joy, encouragement and
connectedness filled the room during the gala, thinking about how far
Indigenous peoples have come in our common struggle with the Canadian
government; to be recognized and respected as nations.

Attending the conference provided
us the opportunity to imagine what the future holds.This is only possible
through the hard work of our community members and our women. Qujannamiik to
the Indigenous Bar Association for being a revitalizing experience and support
network for so many Indigenous women and female-identified Indigenous people.

Beth Kotierk is the daughter of Apayata and Juliet Kotierk
from Igloolik, Nunavut. She is currently in her second year of law school at
the University of Ottawa.

We are writing to invite
you to attend the launch of the National Association of Women and the Law Charitable Trusts’ new
applied course on feminist law reform: ‘Feminist Law Reform 101’. The
launch and reception will take place on Wednesday November 2nd,
from 6p.m.
– 8 p.m. in the Alex Trebek Alumni Hall, 157 Séraphin-Marion
Private, at the University of Ottawa.

This new online
open-access and fully bilingual course draws on the expertise of feminist
lawyers, activists and others actively engaged in the law reform process and
provides a “tool-kit” for pursuing systemic legislative change. Topics covered
include interacting with the executive branch and MPs, making effective use of
the media, and working in coalitions. The course combines readings with
short video clips and suggested discussion questions in an interactive format
designed for use in both classroom and non-classroom settings. The course
can be accessed herefollowing the launch.

Please RSVP before
October 28th by e-mailing anne.levesque@uottawa.ca. Feel free to share
this invitation with anyone who may be interested in attending and we look
forward to seeing you on November 2nd !

Thursday, September 29, 2016

Some of our fabulous uOttawa law students invite you to #DanceIsMyExpression—a night of youth choreographed dance
in support of mental health.

The night will feature dance pieces
choreographed by Ottawa youth between the ages of 6 and 18 that are expressive
of something they wanted to share with the world. These dancers have really
done a fantastic job with their choreography. Their stories range from being in
their happy place, to losing a grandparent, to bullying, to depression/suicidal
thoughts, to friendship, to taking everything life throws at you. The showcase
features all styles of dance and aspecial guest performance by YTV host
Carlos Bustamante!

The showcase is being held on Friday
Oct 14th from 7pm to 9:30pm at St. Paul's High School and all the
proceeds from the event are going to the Paul Hansell Foundation, a non-profit
organization aimed at supporting the mental health and emotional well-being of
youth.

Wednesday, September 28, 2016

Save the Date: An Evening
with Trey Anthony

The Joint Chair in Women’s Studies at Carleton University and the
University of Ottawa will be hosting an evening with Trey Anthony, the
award-winning playwright, actor, executive producer, and director of the
theatrical production “Da Kink in My Hair”.

Anthony was the first Black Canadian woman to write and produce a
television show of the same name for the Global Television Network and has been
a writer and producer for the W Network, Comedy Network and CTV. Anthony
volunteers with Black Queer Youth Group in Toronto, mentoring female adolescent
girls and in 2009, she founded a woman-focused wellness facility The Trey
Anthony@One Centre in Toronto.

Please save the date to hear and welcome this Canadian icon on Tuesday,
November 1st 2016 from 4 – 6pm. This is a bilingual event.

Want to see the play? Plan to stay and watch the NAC production of
“Da Kink in My Hair” that night! For ticket information, please consult
the NAC’s website: http://nac-cna.ca/en/event/13616. Please note that we are looking into securing discount tickets.

What does it mean to be “racialized” in Canada? And what does it
have to do with our responses to sexual violence?

We used this term in our recent
op ed on the Justice Camp Inquiry before the Canadian Judicial Council. One of the points we made in this piece is
that Justice Robin Camp’s alleged “re-education” on sexism (as it inhibited his
ability to judge the issue of sexual assault fairly) seemingly failed to deal
with the issue of racism, which we believe was also critical in this case.

We said this because the complainant at whom he directed his
aggressive and disparaging remarks was a young Indigenous woman. We were
reinforced in our view by the fact that the Crown prosecutor, whose effort to
focus his attention on the law (as opposed to his opinions) he rebuffed with a cruel
remark, was herself racialized.

But you won’t find the word in our op ed because the news agencies
involved were not satisfied that we could demonstrate that the Crown prosecutor
is either objectively a “woman of colour” or considers herself “racialized”.
They were also understandably worried that ordinary readers would not know what
this word means.

The difficulty is that being “racialized” is about how one is
perceived and treated in a given society at a particular historical moment—it’s
not about either “facts” such as physical appearance or “self-identity”. As our
colleague Professor Joanne St Lewis observes, the issue is whether one is a
member of a community that is subjected to racism. In other words, the word
“racialized” recognizes that “race” and the subordination that accompanies this
designation is not inherent in the person but is rather a social relation—an
exercise of power.

So, while the “incomprehensible” and “unsubstantiated” word
“racialized” was excised, we remain convinced that racism has been
“whitewashed” out of the Camp Inquiry and that there is something critical to
discuss. Too late—but we were able to substantiate our use of the word, with
the help of our colleague Professor St Lewis. This Crown attorney
self-identifies as “Arab” and even Statistics
Canada recognizes that people viewed as “Arab” are “visible minorities.” Arab-Canadians
do experience discrimination in daily life in Canada. Lise Gotell comments
that Ms Mograbee’s colleagues, including judges, saw this as a significant
aspect of what unfolded in the now infamous sexual assault hearing before
Justice Camp.

We hope by this comment to both acknowledge the gap between
racialized and non-racialized communities in terms of knowledge and experience of
racism, and contribute to our collective understanding of racism as a critical
force in perpetuating and excusing sexual violence.

Friday, September 16, 2016

Perspectives on Legal Responses to the Sex Trade

The Shirley Greenberg Chair in Women and the Legal Profession will present two events during the 2016-17 academic year showcasing a variety of perspectives on legal responses to the sex trade. Faculty members, staff, students, alumni and the broader University of Ottawa community hold very different opinions on the appropriate legal response to the sex trade in Canada, reflecting a spectrum of positions from abolitionism to de-criminalisation or legalisation. These events are intended to provide a venue for the respectful expression and debate of opinions along this spectrum.

The first event will take place in the fall term, on September 22nd, 2016, and will feature three speakers whose positions reflect a diversity of abolitionist perspectives. The second event, planned for Feb. 22nd, 2017, will reflect a variety of legalisation and de-criminalisation perspectives. The order of these events is dictated by the availability of the speakers, and does not reflect a hierarchy of ideas.

One of the most important roles of a university is to create an environment for the free, respectful expression and exchange of ideas. At the Faculty of Law we aim to foster a space of inquiry, learning, debate and exchange. These two events are designed to educate the members of the law school community on the relevant debates, and to provide a forum for respectful questioning and discussion.

Below you will find a series of links to information on the spectrum of proposed legal responses to the sex trade.

Saturday, August 27, 2016

Prof. Martha Jackman is offering an exciting course in feminist law reform, open to English or French Common law students. The course is now open to students who wish to AUDIT the course, as well as those who wish to enroll for credit. Please contact Prof. Jackman at: mjackman@uottawa.ca.

Tuesday, July 26, 2016

Below you will find the syllabus for Prof. Martha Jackman's exciting feminist law reform/Réforme féministe du droit course at the University of Ottawa Faculty of Law. Interested students should sign up!

Law reform is an essential component of the
struggle for women’s equality in Canada.
This bilingual seminar course (with guest speakers and some off-campus
visits) will provide students with an opportunity to develop the knowledge and
skills necessary for the pursuit of systemic legislative remedies at the
federal level. Drawing on the expertise
of feminist lawyers and others actively engaged in the federal law reform
process, areas of discussion and training will include: access to information
and research; submissions and appearances before parliamentary committees;
lobbying; media and public relations campaigns; public legal education;
grassroots outreach and other key tools and avenues of feminist law reform
advocacy. (3 credits)

PREREQUISITE :

Constitutional Law I or an equivalent course on
the Canadian Charter of Rights and
Freedoms. This is a bilingual
course. Students must have a good
(passive) knowledge of both official languages.
The instructor will switch between languages each week and presentations
by guest speakers will be in English or in French. Students may use the
language of their choice in class.

COURSE
MATERIALS :

Course materials available electronically on
the Professor’s faculty web-site.

METHOD OF EVALUATION :

The method of
evaluation includes five components:

1)
class preparation and attendance (10% of the final grade);

2)
a letter to the editor, of a maximum 200 words in length, due by 4 p.m. on December
7 (5% of the final grade);

3)
an op-ed, of a maximum 700 words in length, due by 4 p.m. on December 7 (15% of
the final grade);

4)
a letter to a minister/prime minister, of a maximum 200 words in length, due by
4 p.m. on December 7 (5% of the final grade); and

5)
a written brief, of a maximum 3,000 words in length (5,000 words to fulfil the
major paper requirement), on a feminist law reform topic of the student’s
choice, due by 4 p.m. on December 22 (65% of the final grade).

Tuesday, July 19, 2016

This is cross-posted from the View Point column from the May/June 2016 issue of the Human Rights Digest, with permission.

Anne Levesque

On January 26, 2016, the Canadian Human
Rights Tribunal (“CHRT”) released a historic decision (‘’decision’’) finding
that Canada is racially discriminating against over 163,000 First Nations
children and their families by providing flawed and inequitable child welfare
services ("FNCFS Program") and by failing to implement Jordan's
Principle to ensure equitable access to government services available to other children.1
In a subsequent order issued on April 26, 2016, the CHRT commented on Canada’s
failure to take sufficient immediate action to comply with its January
decision. It wrote: “[i]t is unclear why and how some of the findings [of discrimination] have not been addressed within the
three months since the [January] decision. Instead of being immediate relief, some of these items
may now become mid-term relief”.2

In response to this inaction, the CHRT
ordered Canada to confirm that it had fully implemented Jordan’s Principle and
to report on the steps it had taken to comply with its January decision. Such
reporting orders are exceptional and are generally issued only in cases where
the failure to promptly comply with an order may cause irreparable harm,
particularly to a vulnerable group, as was the case in Doucet-Boudreau.3
Similarly, in Caring Society (No.
15), the CHRT heard and accepted evidence that Canada’s discriminatory
FNCFS Program was causing First Nations children to be removed from their families
and communities and put into care at alarming rates.4 It ordered
Canada to immediately cease its discriminating conduct towards against First
Nations children in accordance with its ruling.5

It is disappointing that in the face of
these tragic circumstances and such an exceptional legal measure, Canada failed
to take the immediate action necessary to lessen the discrimination experienced
by First Nations children receiving child welfare services following the CHRT’s
April reporting order. By way of example, the 2016 Budget allocates $71.1
million to First Nations child welfare services in 2016–2017, only $60.38 million of which will be
directed to service delivery for children and families. By contrast, Canada’s
own internal documents estimated that a minimum of $108.1 million plus an
annual 3 percent increase for inflation was required (in 2012 dollars) to
provide First Nations children with child welfare services comparable to those
available off reserve. The largest
funding allocation in the 2016 Budget for child welfare services for First
Nations children will not be conferred until 2020–2021 and that depends on whether the current government gets
re-elected. When asked why First Nations children needed to wait five years —
or a quarter of their childhood — to receive services comparable to those
available to others, Prime Minister Trudeau stated that the government needed
to “create the capacity” before providing additional funds to FNCFS agencies.6
Yet, none of the evidence presented before the Tribunal supports the Prime
Minister’s claim that First Nations agencies do not have the capacity to
deliver equal services to First Nations children. From a human rights
perspective, the claim, which is akin to stating that discrimination against
certain groups is acceptable because they are not, in the eyes of the party
responsible for the discrimination or the public, ready for equality, is also
very problematic.

Canada’s inaction
with respect to the implementation of Jordan’s Principle is equally disconcerting.
In its May 10, 2016, compliance report to the CHRT, Canada claimed that it had
fully implemented Jordan’s Principle. Yet, Canada has failed to take the
measures necessary to ensure that First Nations children not longer experience
discrimination as a result of jurisdictional disputes. For
example, the INAC website directs the public to contact a series of telephone
numbers for Indigenous and Northern Affairs Canada (“INAC”) regarding Jordan’s
Principle cases. The Caring Society called each number to test the
accessibility of INAC’s Jordan’s Principle reporting system. Results revealed
out of service telephone numbers, automated answering machines that did not
include a Jordan’s Principle option and government officials who were not aware of
Jordan’s Principle or referred the caller to a First Nations organization. Only
one INAC office was able to send contact information for officials several
hours after the original call.7
The results of the calls were immediately brought to INAC’s attention
and the Caring Society sought confirmation from INAC that the matter has been
addressed but no response has been received. This raises significant concerns
regarding Canada’s compliance with the CHRT January order. More importantly, it
suggests that First Nations children will continue to experience discrimination
when seeking access to government services, or simply be denied those services
altogether.8 This is not surprising given that the CHRT
found that jurisdictional disputes caused First Nations children to be denied
services available to other children due to poor or complete lack of
coordination between and within governments. Such ongoing systemic and
widespread discrimination cannot be remedied simply by making grandiose
statements.

On June 14, 2016, faced with this
continued inaction, and upon receipt of Canada’s compliance report regarding
the CHRT’s findings of discrimination relating to its FNCFS Program, the CHRT
cancelled an upcoming case conference it had scheduled with the parties to
discuss the implementation of the January decision. In particular, it wrote:

The Panel finds there are far more
unresolved issues to deal with th[a]n it had expected and is now questioning
the benefit of having a meeting at this time. Therefore, the Panel proposes to
use its limited resources to address as many of the outstanding issues as it
can now.9

The CHRT is expected to rule upon the
Caring Society’s requests for immediate relief later this year. It is
unfortunate that such requests are even necessary and that Canada remains
unwilling to comply voluntarily with the CHRT’s decision by ceasing its
discriminatory conduct towards some of the most vulnerable members of our
society, First Nations children.

Anne
Levesque, B.A., LL.B., MSt (Oxon)
is proud to have been one of the lawyers who represented the
First Nations Child and Family Caring
Society of Canada in this case.

___________________

1. First Nations Child and Family Caring
Society of Canada v. Canada (Attorney General) (No. 15), 2016 CHRT 2, CHRR
Doc. 16-3003 (“Caring Society (No. 15)”).
When there is a dispute as to which level of government must fund a particular
service, Jordan’s Principle states that the service must be immediately
provided by the government that is contacted first, and that jurisdictional issues
must be sorted out later. For more information on Jordan’s Principle, visit
https://fncaringsociety.com/jordans-principle.

3. In Doucet-Boudreau v. Nova Scotia (Minister of
Education), [2003] 3 S.C.R. 3 (“Doucet-Boudreau”),
the Supreme Court of Canada upheld an order of a trial judge from Nova Scotia
in a language rights case to retain
jurisdiction to hear reports on the status of the effort of the province to
provide adequate school facilities and programs for Francophones. In so doing, the Supreme Court
noted that for every school year that governments do not meet their obligations
under s. 23 of the Canadian Charter of
Rights and Freedoms, there was an increased likelihood of assimilation
which carries the risk that numbers might cease to “warrant”, and thus
extinguishing the right to school instruction in a official minority
language.

7. For more
information about the calls, see APTN story which aired on June 21, 2016,
available at http://aptn.ca/news/2016/06/21/indigenous-affairs-help-lines-dont-work-advocates-say/.

8. On June 7, 2016, the Caring Society contacted the regional
offices and numbers on the website and asked to speak to the person in charge
of Jordan’s Principle cases noting that the INAC website says that persons with
questions regarding Jordan’s Principle should call the regional INAC office.
The object of the exercise was to ensure members of the public with Jordan’s
Principle cases were able to bring them to INAC’s attention and have them
addressed. The Caring Society contacted the 1-800 number listed under the
Atlantic, Quebec and Manitoba Regions and the person receiving the call advised
that they did not have a contact person and that they would send out a general
email. The number listed for Quebec Region (1-800-263-5592) yielded a
completely automated system with five options to leave messages about specific
topics. None of the topics included Jordan’s Principle inquiries. The number
listed for the Atlantic Region appeared to be out of order as multiple calls
yielded only a tone at the end of the line. Calls to the remaining regional
offices of Ontario, Saskatchewan, Alberta, and the Yukon revealed polite
responses from staff but did not yield a person to speak to about the cases.
The Caring Society received responses ranging from options only to leave
messages on voice mail to staff saying they did not know what Jordan’s
Principle was, to being referred to the First Nations Health Authority (in BC)
and suggesting they leave a message for a person who would not be back in the
office for several days. Ontario region did contact the Caring Society several
hours after our call with the names and addresses of persons to reach.

Thursday, July 7, 2016

The new Trudeau government has had its
hands full dealing with a number of important and pressing concerns both
domestically and internationally. However, the federal government must soon
turn its eye to the glaring hole in Canadian law that allows Canadian
extractive companies to engage in, and profit from, human rights and
environmental abuses in their overseas operations, often with impunity. Canada
hosts a significant majority of the world’s largest exploration and mining companies,
as well as a large number of oil and gas companies, many of which have
operations in developing countries. Over the last five years an increasing
number of civil cases have been launched in Canadian courts alleging egregious
conduct, including murder, gang rape, forced labour, torture and complicity in
war crimes, on the part of Canadian extractives, their subsidiaries and their
security contractors.[1] The most well known
case is Choc v HudbayMinerals Inc., which has been attracting
significant media attention over the past six months.[2] The case concerns three related civil actions initiated by
indigenous Mayan plaintiffs from the Guatemalan community of El Estor. The
plaintiffs allege that the security personnel employed by HudBay’s Fenix mining
project shot and killed Angelica Choc’s husband, Adolfo Ich, shot and left
paralyzed another plaintiff, German Chub Choc, and along with police and
military, gang raped Margarita Caal Caal and 10 other Mayan women.[3] Two other cases against Canadian extractive companies are currently
before British Columbia courts, one alleging complicity in forced labour and
torture, and another, alleging the use of excessive force by security personnel
against peaceful protesters.[4]

These cases represent only the tip of the
iceberg. Complaints about the overseas conduct of Canadian extractive companies
are far from rare. Individuals, groups and non-governmental organizations have also
brought complaints in non-judicial fora or reported allegations of harmful
conduct, including human rights violations on the part of members of Canada’s
extractive sector.[5] A report commissioned in 2009 by the Prospectors and Developers
Association of Canada, which was leaked in 2010, identified 171 high profile
incidents between 1999 and 2009 in which “international mining and exploration
companies were involved in community conflict, human rights abuses, unlawful or
unethical practices, or environmental degradation in a developing country”.
According to the study, Canadian mining companies had been involved in 33% of
such incidents, which amounted to four times as many incidents as companies
from India, Australia, the US or the UK.[6]

What has Canada done to address this
problem? Very little indeed. There is no legislative framework in place
requiring Canadian extractive companies to adhere to human rights standards in
their overseas operations. Nor does Canadian law provide foreign victims of
alleged corporate-related human rights violations with access to an effective
remedy. Foreign victims of abuses by Canadian extractive companies who choose
to sue in Canada face enormous obstacles in accessing justice. Most cases have
been dismissed on jurisdictional issues. Of all the civil suits brought so far
in Canada, only Choc v Hudbay case
has proceeded to the merits. Moreover, there is no independent quasi-judicial
complaint mechanism with the capacity to receive complaints of human rights
abuse and other misconduct by Canadian extractives, to investigate allegations
and to report on its findings, as an alternative to the court system. Instead, Canada
continues to rely on extractive companies to regulate themselves and the
government only provides for mediation between companies and foreign affected
communities with the aim of easing the way forward for extractive projects.

Back in 2005, the Standing Committee on
Foreign Affairs and International Trade, recommended, among other things, that
the federal government “[e]stablish clear legal norms in Canada to ensure that
Canadian companies and residents are held accountable when there is evidence of
environmental and/or human rights violations associated with the activities of
Canadian mining companies” and implement incentives to ensure corporate compliance.[7] In 2006, the Liberal government initiated nation-wide
consultations, know as the National Roundtables on Corporate Social
Responsibility (CSR) and the Canadian Extractive Industry in Developing
Countries. In early 2007, following the conclusion of the consultations, the
Roundtables Advisory Group, made up of leading representatives from civil
society, the extractive industry and academia, issued a series of
recommendations to the government for establishing a comprehensive and robust CSR
policy framework for extractives operating overseas.[8] The Conservative government took two years to respond, and in 2009
launched its CSR strategy, “Building the Canadian Advantage: A Corporate Social
Responsibility (CSR) Strategy for the Canadian International Extractive Sector”,
which disregarded the most important recommendations made by the Advisory Group,
including the establishment of an independent ombudsman with a mandate to
receive and investigate complaints of corporate misconduct abroad.[9] Instead, the 2009 Strategy merely encouraged extractive companies
to adopt or sign on to certain intergovernmental and multistakeholder
initiatives and established the Office of the CSR Counsellor, an ineffectual dispute
resolution mechanism with no power to compel companies, against whom
allegations had been made, to come to the table.

In November 2014, the government launched a
revised version of the CSR Strategy called “Doing Business the Canadian Way: A
Strategy to Advance Corporate Social Responsibility in Canada’s Extractive
Sector Abroad”.[10] The new Strategy is an
improvement on the 2009 version. It sets out some expectations of conduct of
Canadian extractive companies operating overseas and indicates that diplomatic
support and certain types of economic support provided by the government may be
withdrawn where such companies fail to adhere to the expectations of conduct or
to participate in the dispute resolution process.

Despite these important changes, the
Strategy does little to prevent corporate misconduct and to hold those that do
not comply accountable.[11] First, the
expectations of conduct are far from clear. Among other things, companies are
expected to “respect human rights”, but the Strategy fails to provide specific
and crucial guidance on what this might entail or to explicitly refer companies
on this issue to the UN Guiding Principles on Business and Human Rights (UNGPs)
(the widely accepted global standard on this issue) or the OECD Guidelines for
Multinational Enterprises (which, in its chapter on human rights, explicitly
draws on the language of the UNGPs). Rather, the Strategy simply refers companies
more generally to a variety of diverse multistakeholder and intergovernmental
initiatives, including the UNGPs and OECD Guidelines, “with the expectation
that Canadian companies will align their practices as applicable”.[12]

Second, the 2014 CSR strategy strengthened
the CSR Counsellor’s dispute settlement powers by making government economic
and diplomatic support conditional on a company’s participation in its “review
process”. But it did not transform the Counsellor’s Office into a much needed
independent complaint mechanism, with the capacity to receive and investigate
and report on allegations brought by victims of alleged corporate-related
violations of human rights or breaches of the other expectations of conduct set
out in the Strategy. The Counsellor’s review process remains a dialogue facilitation
process. He may receive complaints from “project-affected individuals or
communities” (or even extractive companies complaining about vexatious
allegations against them) and “bring the disputing parties together to help
them resolve their differences for a mutually beneficial result”.[13] Of course this can be a valuable exercise and help extractive companies
and local communities to understand each other’s positions, to compromise and
come to an agreement on how to move forward. But it does not provide victims
with an effective remedy.

Finally, the Strategy does nothing to
address the often insurmountable hurdles that victims of alleged human rights
abuses face in having their claims considered on the merits in Canadian courts.[14]

The ball is now in the Trudeau government’s
court to move beyond the approach of self-regulation and to take meaningful
steps to ensure that Canadian extractive companies do respect human rights in
their overseas operations, and, where the latter do not, to ensure accountability
and to provide effective remedies for victims. In the past year, both the UN
Human Rights Committee and the UN Committee on Economic Social and Cultural
Rights have called on Canada to take legislative action to address the overseas
conduct of Canadian extractives and provide remedies for victims.[15] The government must go further than simply tinkering with the
current CSR strategy and the CSR Counsellor’s review process. It must adopt a comprehensive
legislative framework with clear standards for Canadian companies operating
abroad and develop incentive, facilitative and even coercive legal mechanisms
to ensure compliance.[16] In addition to addressing the problem of access to justice in
Canadian courts (perhaps by exploring Federal Court jurisdiction and a federal
cause of action, or changes to the Uniform Law Conference of Canada’s Court
Jurisdiction and Proceedings Transfer Act), the government must also establish
an independent complaint mechanism, such as an ombudsman, as an alternative to
the courts. The approach by the new Liberal government taken in addressing this
pressing issue will be a litmus test for its commitment to the protection
international human rights.

[13]“Doing Business the Canadian
Way”, p. 12. Where formal mediation is needed, the Counsellor will support the
parties to bring the issue to Canada’s National Contact Point, a body it is
required to maintain under the OECD Guidelines for Multinational Enterprises.
For a discussion of the self-imposed limitations and other shortcomings of the
NCP process see Simons, “Canada’s Enhanced CSR Strategy”, note 11, pp. 194-198.

[14]For a discussion of these
obstacles and the various cases that have been launched in Canadian courts, see
Simons, “Canada’s Enhanced CSR Strategy”, note 11, pp. 198-205.